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VOLUME 16 | NUMBER 10 | OCTOBER 2021
 
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IN THIS ISSUE
 
Introductory Remarks
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CLE Anytime
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Members Spotlights
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Recent Cases
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The Real Property Section Newsletter is published monthly
by the Real Property Section.

Editor
Vivienne Chen

 

Real Property Executive Committee:

SECTION OFFICERS

Chair
Teresa Y. Hillery

Vice Chair (Programming)
Rachel Sanders

Vice Chair (Communications)
Vivienne Chen

Vice Chair (Membership)
Gretta Moy

Treasurer
Owen Gross

Secretary
Dan Villalpando

Immediate Past Chair
Kelsey Thayer

 

 

EXECUTIVE COMMITTEE MEMBERS
Celeste Caitlen Ahl, II
Eric A. Altoon
Nedra Austin
Rosetta Broomfield
Norman A. Chernin
Sadara DeVonne
Caroline Dreyfus
Brant H. Dveirin
Kimia Ghalambor
Jane L. Hinton
Laurence L. Hummer
Trudi J. Lesser
Linda E. Spiegel
Ira J. Waldman

Law School Liaison
Daniel Liffmann

Barrister’s Liaison (non-voting)
Niloofar Henzaki

Section Administrator
Fatima Jones

 

SUBSECTION CHAIRS

Commercial Development and Leasing Subsection, Co-Chairs
Steven Farenbaugh
Jonathan Zweig

Construction Law Subsection, Co- Chairs
Aaron J. Flores
Ashley B. Jordan

General Real Property Subsection,
Co-Chair
s
Michael Davis
Joe Dzida

Land Use Planning and Environmental Law, Subsection Chair
Julie Hamill

Real Estate Finance Subsection,
Co-Chairs

Mark Hikin
Alyssa Ashley Rutherford

Title Insurance Subsection, Chair
James H. Treadwell

 

PAST CHAIRS

Roy H. Aaron*
Eric A. Altoon
Michael J. Bayard
Stephen M. Blitz
Susan J. Booth
Elizabeth Spedding Calciano
Robert E. Carter*
Norm Chernin
R. Bradbury Clark*
Claire Hervey Collins
Professor William Coskran*
Caroline Dreyfus
Anson Dreison*
Brant H. Dveirin
Peter Gelles
Gail Gordon*
Byron Hayes, Jr.
Gordon Hunt
Bryan C. Jackson
Michael S. Klein
Preston Kline*
Bernard Kolbor
Robert Krueger*
Mark L. Lamken*
Marvin Leon
Gregg J. Loubier
Victor I. Marmon
Jerold L. Miles
O’Malley M. Miller
Rodney Moss*
Donald C. Nanney
Gytis L. Nefas
Carl B. Phelps
Laurence G. Preble
James D. Richman
Peter E. Robinson
Floyd Sayer*
Margaret J. Schock
Ronald I. Silverman
Sarah V.J. Spyksma
Theresa C. Tate
Kelsey Thayer
Timothy M. Truax
Richard S. Volpert
Ira J. Waldman
Alan Wayte*
Pamela L. Westhoff
John W. Whitaker
George H. Whitney*
Norma J. Williams
John M. Yunker, Jr.
Paula Reddish Zinnemann

*Deceased

 

 

Introductory Remarks

On behalf of the Real Property Section of the Los Angeles County Bar Association and California Lawyers Association, thank you to our sponsors, panelists, and attendees for supporting our signature event. This year’s Crocker Commercial Real Estate Symposium was another great success! Although it was virtual, our outstanding panelists provided lively discussions on trends and developments in commercial real estate to over 300 attendees. We appreciate everyone’s contribution and look forward to meeting in person next year!

Our Open Invitation
Want to learn more about our section and see how you can get involved? We invite you to join one of our Executive Committee meetings and hear for yourself what we do and why we do it. The Executive Committee meets every first Wednesday at 12:30 p.m. to 1:30 p.m. on Zoom (Meeting Registration – Zoom). Feel free to stop by and meet our dynamic group in our next meeting on November 3, 2021.

Social Media
If you have not already, please join our LinkedIn group for up-to-date information about our section. Please click here or the LinkedIn tab right below Find Us on Social Media, and request to join the group. We appreciate you!

Vivienne Chen
Editor, Real Property Section Newsletter
E-mail address: vchen@swlaw.com

 

Find Us on Social Media

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Coming Events
 
October 26, 2021, 12:30 p.m.- 1:30 p.m.
The Skywalk Tragedy: Lessons Learned from the Collapse

In terms of loss of life and injuries, this was the most devastating structural collapse ever to take place in this country.”  U.S. National Bureau of Standards (Feb. 1982).  No, it was not the World Trade Tower or Pentagon, nor the Oklahoma City bombing. Years before those events, the worst structural collapse took place in Kansas City, Missouri on July 17, 1981, when two suspended walkways collapsed in the Hyatt Regency hotel, killing 114 and injuring another 216.  Four decades later, there is still misinformation about what happened, what caused the collapse, and whether it could have been prevented.

Click here to register

 
November 2, 2021 12:30 p.m. - 1:30 p.m.
Unraveling the Complexities of Contractual Fee Shifting Clauses Under Civil Code Section 1717

The following topics will be covered during this program, with an emphasis on how fee shifting clauses come into play in real estate disputes:

  1. Avoiding drafting pitfalls when negotiating attorney fee clauses;
  2. How to determine who is the prevailing party;
  3. Civil Code Section 1717 applicability to non-signatories to a contract;
  4. Interplay of Civil Code Section 1717 in arbitrations;
  5. Recovery of fees under Civil Code Section 1717 in tort actions.

Click here to register

 
November 9, 2021 12:30 p.m. - 1:30 p.m.
Title Insurance & Trusts: Insuring Sales of Trust Property

This program will focus on actual underwriting and title policy coverage issues that come up in transactions involving trusts. Understand what to look for to determine whether your client’s existing title insurance policy continues to provide coverage after they transfer title to the trustee of their family trust. Please join us as we discuss the following questions/issues, amongst others:

  • Will coverage be available for a trustee who deeds trust property to themselves?
  • How do title companies resolve potential conflicts of interest?
  • Do judgment or tax liens against the trustee or beneficiary attach to trust property?
  • What’s the latest on Heggstad?
  • Conflicts between the trustee and beneficiary can disrupt a closing. Understand common approaches that may resolve those conflicts.
  • Who gets to be successor trustee?
  • Do title insurance companies rely on certification of trust?
  • Learn why a title company may ask for a copy of the trust.

Click here to register

 
November 10, 2021, 12:30 p.m. - 1:30 p.m.
Revisiting the Housing Crisis Act of 2019 and the Housing Accountability Act

This panel will recap how the Housing Crisis Act of 2019 (SB 330) and the Housing Accountability Act work, discuss legislative amendments to these laws and recent case law interpreting them, and explore how developers have been using the laws and how public agencies have been implementing them, including the challenges faced and opportunities presented in doing so.

Click here to register

 
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CLE Anytime
 

LACBA Real Property CLE Anytime

Even if you can't attend our Real Property Section events, you can earn CLE credit by viewing our streaming videos. Here are a few options. Click any link below.

A Primer on How Title Companies Underwrite Construction Loans Since the Last Great Recession

Real Estate Applied Bankruptcy Basics and Evolving Developments in a Post-Pandemic Era

Commercial CC&R's and Reciprocal Easement Agreements

2021 Flaig Award & Annual Construction Law Update

Ground Lease Practice: Beyond the Basics

Nuts and Bolts of E-Recording

 
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Calling All Authors
 

Los Angeles Lawyer magazine, the premier publication of the Los Angeles County Bar Association which is distributed to all of its members monthly, is seeking scholarly articles and practice tips written by lawyers on topics of current interest to its readers. If you have recently spoken at a seminar, you probably already have materials that can be adapted for such an article. Please contact Norm Chernin at normchernin@gmail.com to discuss publication of your article in the magazine. Thank you.

 
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Recent Cases
 
- Development -

Neither Government Code §65915 nor the Los Angeles City ordinance implementing it require a permit applicant to provide financial documentation to prove that the requested concessions will render the development economically feasible.

Schreiber v. City of Los Angeles (Neman) - filed Sept. 28, 2021, Second District, Div. Six
Cite as 2021 S.O.S. 5450
Full text click here >

- Environmental Law -

A challenge to the issuance of a Pollutant Discharge Elimination System was timely where it was challenged within 120 days of issuance; the permit lacked sufficient monitoring provisions to ensure compliance with the permit’s zero discharge requirements for both production and land-application areas, and therefore, it was arbitrary, capricious, and an abuse of discretion; the Environmental Protection Agency has discretion in crafting appropriate monitoring requirements for each permit, but this discretion is not unlimited.

Food & Water Watch v. U.S. Environmental Protection Agency - filed Sept. 16, 2021
Cite as 2021 S.O.S. 20-71554
Full text click here >

Nonprofit organizations with a mission to protect water quality and aquatic resources of Orange and Riverside Counties had standing to pursue claims that a company was illegally discharging pollutants into navigable waters and that the company was failing to monitor its discharges. A Clean Water Act citizen suit can be premised on ongoing or reasonably expected monitoring or reporting violations; the CWA bars citizen suits alleging only wholly past violations of permits.

Inland Empire Waterkeeper v. Corona Clay - filed Sept. 20, 2021
Cite as 2021 S.O.S. 20-55420
Full text click here >

The California Environmental Quality Act requires that an environmental impact report be completed before a lead agency makes a decision on a project, but under Public Resources Code §21168.9, a trial court has the authority to leave earlier project approvals in place while the agency complies with CEQA. An EIR that described the existing conditions and discussed two no project alternatives was sufficient to allow for informed decision-making and public participation.

Central Delta Water Agency v. department of Water Resources (Roll International, Kern County Water Agency) - filed Sept. 22, 2021, Third District
Cite as 2021 S.O.S. 5260
Full text click here >

The Legislature’s waiver of the state’s immunity extends only to the activities expressly defined in Chapter 10 of the Water Code.

Department of Water Resources Cases - filed Sept. 23, 2021, Third District
Cite as 2021 S.O.S. 5295
Full text click here >

The County of Placer should have placed special emphasis on Lake Tahoe in its discussion of the environmental setting of a proposed development project where the lake would undisputedly be affected by the project; and environmental impact report failed to meaningfully assess the project’s traffic impacts on the lake and lake basin’s air quality where the EIR did not disclose the analytic route the county used to conclude there would be no adverse impact and it relied on deferred mitigation to address transit impacts. The EIR underestimated evacuation times because it wrongly assumed emergency responders would provide traffic control at key intersections. The EIR’s analysis and mitigation of construction noise impacts were inadequate where the EIR did not analyze the project’s full geographic range of noise impacts. An EIR’s mitigation measures were inadequate where the measures vaguely instruct contractors to be quieter, defers until later the determination of which construction procedures can feasibly be changed and how these procedures can be modified to be quieter, and offers no instruction on how either of these determinations are to be made.

Sierra Watch v. County of Placer (Squaw Valley Real Estate) - filed Aug. 24, 2021, partial publication ordered Sept. 22, 2021, Third District
Cite as 2021 S.O.S. 5308
Full text click here >

Where a plaintiff created a triable issue as to whether hexavalent chromium is solid waste for purposes of the Resource Conservation and Recovery Act, the plaintiff also created a triable issue as to whether a city was a transporter of solid waste by presenting evidence that water moving through the city’s distribution system contained hexavalent chromium; a transporter of waste need not also be the cause of the waste’s existence.

California River Watch v. City of Vacaville - filed Sept. 29, 2021
Cite as 2021 S.O.S. 20-16605
Full text click here >

Congress has not addressed whether 33 U.S.C. §1313(c)(2) (A) precludes the Environmental Protection Agency from taking compliance costs into account when approving variance requests; the EPA’s regulations reasonably interpreted the Clean Water Act as allowing consideration of compliance costs when the agency approves water quality standards and variance requests. The EPA’s variance regulation unambiguously provides that compliance with the highest attainable condition is not required at the outset.

Upper Missouri Waterkeeper v. U.S. Environmental Protection Agency - filed Oct. 6, 2021
Cite as 2021 S.O.S. 19-35898
Full text click here >

A plaintiff’s challenge to a city’s decision to approve two sets of projects which would convert overhead utility wires to an underground system was barred as to the first set of projects because she failed to exhaust her administrative remedies since the city’s municipal code created a specific procedure for interested parties to file an administrative appeal of an exemption determination before a project is submitted for approval; the city’s finding that the projects would not have a significant environmental impact due to greenhouse gas emissions was not supported by substantial evidence where the city did not follow the California Environmental Quality Act’s mechanism to conduct a streamlined review for analyzing a project’s consistency with a broader greenhouse gas emission plan.

McCann v. City of San Diego - filed Oct. 8, 2021, Fourth District, Div. One
Cite as 2021 S.O.S. 5648
Full text click here >

 
- Fair Housing Act -

Foreseeability alone is not sufficient to establish proximate cause under the Fair Housing Act; there must be some direct relation between the injury asserted and the injurious conduct alleged. A city did not sufficiently plead proximate cause for its reduced tax revenue claim because its theory of harm went beyond the first step of the causal chain, which was the harm to minority buyers who received predatory loans; the Fair Housing Act is not a statute that supports proximate cause for injuries further downstream, and the extension of proximate cause beyond the first step was not administratively possible and convenient.

City of Oakland v. Wells Fargo & Co. - filed Sept. 28, 2021
Cite as 2021 S.O.S. 19-15169
Full text click here>

- Tenant & Landlord  -

A tenant can assert the defense to being evicted based upon domestic violence causing a nuisance on rented property even if non-domestic violence grounds are also asserted in the action; the requisite documentation needed to support the defense can consist of a report prepared by the police narrating a domestic violence incident based solely on a tenant’s statement which do not name the perpetrator of the violence, do not indicate the relationship between the victim and the perpetrator, and only document one of multiple instances of violence relied on by the landlord to evict the tenant.

Elmassian v. Flores; Los Angeles Superior Court - filed Aug. 11, 2021, publication ordered Sept. 10,2021
Cite as 2021 S.O.S. 5200
Full text click here >
Elmassian v. Flores; Los Angeles Superior Court - filed Aug. 23, 2021, reposted with nunc pro tunc order Sept. 23, 2021
Cite as 2021 S.O.S. 5347
Full text click here >

- Nuisance -

While a landowner has no common law right to an unobstructed view over adjoining property, a municipal ordinance specifically allowing a property owner to seek an abatement of a tree view obstruction provides a cause of action based on a nuisance theory, and the tree view obstruction constitutes a continuous nuisance.

Kahn v. Price - filed Sept. 22, 2021, First District, Div. Three
Cite as 2021 S.O.S. 5301
Full text click here >

- Petition -

The word petition is ambiguous as to the level of formality required; as used in the City of Fresno Municipal Code, it encompasses oral requests made to the mayor or councilmember; the oral communication should be given an objectively reasonable interpretation; general statements of concern in e-mails submitted to the mayor do not constitute a petition.

Muskan Food & Fuel v. City of Fresno - filed Sept. 27, 2021, Fifth District
Cite as 2021 S.O.S. 5413
Full text click here >

 
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